Comment to article 26. Voluntary renunciation of a crime The Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Voluntary renunciation of a crime is recognized as the termination by a person of preparatory actions or the termination of actions (inaction) directly aimed at committing a crime, if the person was aware of the possibility of bringing the crime to an end. A person is not subject to criminal liability for a crime if he voluntarily and definitively refused to bring this crime to an end.      

2. A person who voluntarily refuses to commit a crime to the end is subject to criminal liability only if the act actually committed by him contains the elements of another crime.      

3. The organizer of a crime and the instigator of a crime are not subject to criminal liability if these persons, by informing state authorities or by other measures taken, prevented the perpetrator from completing the crime. An accomplice of a crime is not subject to criminal liability if, before the end of the perpetrator of the crime, he refuses to provide him with the promised assistance in advance or eliminates the results of the assistance already provided.      

4. If the actions of the organizer or instigator specified in the third part of this article did not lead to the prevention of the crime by the perpetrator, the measures taken by them may be recognized by the court as mitigating circumstances in sentencing.      

Voluntary refusal to prepare or attempt a crime is a circumstance that eliminates criminal liability for prior criminal activity.      

Part 1 of Article 26 of the Criminal Code defines that "voluntary renunciation of a crime is recognized as the termination by a person of preparatory actions or the termination of an action (inaction) directly aimed at committing a crime, if the person was aware of the possibility of completing the crime. A person is not subject to criminal liability for a crime if he voluntarily and definitively refused to bring this crime to an end."      

At the same time, a person who voluntarily refuses to commit a crime to the end is subject to criminal liability only if the act actually committed by him contains the elements of another crime (part 2 of Article 26 of the Criminal Code). For example, if a person acquired a firearm to commit an assault, but later refused to commit it, he is subject to criminal liability under Part 1 of Article 251 of the Criminal Code for the illegal acquisition of firearms.      

Voluntary refusal is a refusal to complete the preliminary criminal activity that has been initiated if there is a consciousness of the actual possibility of its termination.      

There will be no voluntary refusal if the perpetrator does not continue his criminal activity, having made sure that it is impossible to bring it to an end. For example, a thief at the stage of attempted theft refuses to continue the crime after making sure that he is unable to pick the lock. Such refusal is not voluntary and therefore does not exclude criminal liability.      

Those cases when the perpetrator refused to continue criminal activity as a result of the fact that he encountered difficulties in realizing the criminal intent (or the fear of being exposed, as a result of which the implementation of the crime is postponed for the future) cannot be considered a voluntary refusal.      

Voluntary refusal to commit a crime is a circumstance that specifically excludes, rather than mitigates, responsibility.      

Firstly, the voluntarily abandoned preparation or attempt indicates the absence of a public danger of such an act and the person who committed it.      

Secondly, the elimination of criminal liability in case of voluntary refusal may encourage a person to stop criminal activity that has already begun.      

The motives that guided the subject in refusing to continue the preliminary criminal activity can be diverse (remorse, pity, remorse, etc.). It is only important that the person completely refuses to continue the criminal activity in the consciousness of the possibility of its continuation. There will also be a voluntary refusal when a person refuses to commit a crime for fear of criminal liability.      

Criminal liability for preliminary criminal activity is excluded only if there is a final refusal to continue, and not a temporary break in criminal activity. If, for example, the perpetrator sees that the safe cannot be hacked with the tools he has and stops hacking in order to bring other tools after a while, then the deed cannot be considered as a voluntary abandonment of the crime. You can't talk about voluntary refusal when the crime was over.      

Voluntary refusal at the stage of preparation is most often committed through passive behavior of the person, i.e. the person refrains from continuing the criminal activity started. But the refusal to continue criminal activity in the preparation stage is also possible through active actions. For example, a criminal destroys the instruments of crime.       Voluntary refusal is also possible at the stage of attempted crime. As well as during preparation, voluntary refusal during an attempted crime can be expressed in both passive and active behavior of the subject, however, it depends on whether there is an unfinished or completed attempt.      

In the case of an unfinished attempt, voluntary refusal is always expressed only in passive behavior, i.e. in abstaining from further actions (for example, swinging a knife, the subject lowers his hand without causing any harm to another person).      

Voluntary refusal, first of all, is not possible in all cases of a completed assassination attempt. It is possible only where there is still some more or less long interval in the development of the causal relationship between the moment of action and the possible criminal result. With the assassination attempt completed, the situation is different. In these cases, voluntary refusal can only be expressed in active actions aimed at preventing a criminal outcome. For example, a poisoner gives an antidote to his victim and invites a doctor. In this case, the person is responsible only for the actual harm caused (for example, intentional infliction of moderate harm to health - part 1 of Article 104 of the Criminal Code).          Voluntary refusal must be distinguished from so-called active repentance. The latter includes the active actions of a person who has completed a completed crime aimed at eliminating or reducing the socially dangerous consequences caused: voluntary compensation for damage caused or self-confession, etc.       The main difference between these two concepts is that voluntary refusal is possible only with unfinished criminal activity, while active repentance is possible after the end of the crime.       Active repentance does not eliminate criminal liability, but is considered by the court as a mitigating circumstance (paragraph "d" of part 1 of Article 53 of the Criminal Code).      

Voluntary refusal with complicity has its own characteristics. "The organizer of the crime and the instigator of the crime are not subject to criminal liability if these persons, by informing the state authorities or by other measures taken, prevented the perpetrator from completing the crime. An accomplice of a crime is not subject to criminal liability if, before the end of the perpetrator of the crime, he refuses to provide him with the promised assistance or eliminates the results of the assistance already provided" (Part 3 of Article 26 of the Criminal Code).      

"If the actions of the organizer or instigator specified in part three of this article did not lead to the prevention of a crime by the perpetrator, the measures taken by them may be recognized by the court as mitigating circumstances in sentencing" (Part 4 of Article 26 of the Criminal Code).      

Refusal to commit high treason (Article 165 of the Criminal Code), espionage (Article 166 of the Criminal Code) and forcible seizure of power or forcible retention of power, or the exercise by representatives of a foreign state or a foreign organization of powers within the competence of authorized bodies and officials of the Republic of Kazakhstan (Article 168 of the Criminal Code), should be considered as a special case of active repentance. A note to Article 165 of the Criminal Code states: "A person who has committed the crimes provided for in this article, as well as Articles 166 and 168 of the Criminal Code, is exempt from criminal liability if he voluntarily and promptly informed state authorities or otherwise helped prevent damage to the interests of the Republic of Kazakhstan and if his actions do not contain elements of another crime.".

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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